Citation Nr: 0607356
Decision Date: 03/14/06 Archive Date: 03/23/06
DOCKET NO. 04-02 824 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Fort
Harrison, Montana
THE ISSUE
Entitlement to service connection for a psychiatric disorder,
to include post-traumatic stress disorder (PTSD), as
secondary to residuals of poliomyelitis.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and his wife
ATTORNEY FOR THE BOARD
J. Barone, Counsel
INTRODUCTION
The veteran had active service from July 1952 to June 1954.
This case is before the Board of Veterans' Appeals (Board) on
appeal from a July 2003 rating decision by the Fort Harrison,
Montana, Regional Office (RO) of the Department of Veterans
Affairs (VA).
The veteran had his wife testified before the undersigned
Veterans Law Judge at the RO in May 2004. A transcript of
the hearing has been associated with the record.
When the case was before the Board in April 2005, the instant
issue was remanded to the RO for additional development of
the record. The case was returned to the Board in February
2006 for appellate review.
FINDING OF FACT
Major depression is related to the service-connected
residuals of poliomyelitis.
CONCLUSION OF LAW
Depression is proximately due to or the result of the
service-connected residuals of poliomyelitis. 38 C.F.R.
§ 3.310(a) (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board notes that there has been a significant change in
the law, with enactment of the Veterans Claims Assistance Act
of 2000 (VCAA), now codified at 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5106, 5107, 5126 (West 2002). This law
redefines the obligations of VA to the appellant with respect
to claims for VA benefits.
As explained below, the Board has determined that the
information and evidence currently of record are sufficient
to substantiate the veteran's claim. Therefore, no further
development is required to comply with the VCAA or the
implementing regulations.
Analysis
The Board observes that the veteran suffered from
poliomyelitis, and that he is currently in receipt of service
connection for the residuals of that disease. He maintains
that he suffers from a psychiatric disability as a result of
his service connected disability.
A February 2003 private psychiatric assessment by J.E., M.D.
notes new onset of depressive symptoms. The veteran reported
that his symptoms were of approximately five weeks' duration
and that they included preoccupation with issues surrounding
his early adult experience in the military, which he
described as humiliation and "literal hell". He noted that
the feelings had arisen in the context of his pursuit of
service-connected disability. Dr. E. noted that the veteran
had experience a severe case of polio at age 10, with
residual deficits in hi slower extremities, abdominal, and
trunk muscles. He described his military experiences as very
humiliating, noting that he was put through extreme physical
challenges that were inappropriate for his physical
abilities. He related that over his adult life, he had
experienced several falls that resulted in concussions. He
noted that he felt anxiety following such incidents. Dr. E.
indicated that the veteran had started using a cane two weeks
previously and that he remained sensitive about his
disability. She also noted that the veteran was quite
preoccupied with memories surrounding his military
experience. She indicated that there was some history of
anhedonia dating back two to three years as well as
difficulties with sleep, which might be indicative of some
premorbid level of depression prior to the five week period
reported by the veteran. The provisional diagnoses were
major depressive episode, single episode; and rule out PTSD,
delayed onset.
Subsequent treatment notes from Dr. E. indicate diagnoses of
depressive disorder not otherwise specified and major
depression, single episode, in full remission.
In a May 2004 letter, Dr. E. indicated that the veteran
suffered from a combination of major depression and PTSD
related to traumatic experiences suffered while in the
military. She noted that the veteran experienced
unreasonable physical expectations and emotional
insensitivity toward his disability while in the service.
She indicated that he had recurrent distressing dreams and a
significant preoccupation with the events during his time in
the military, which left him with a lower sense of self
esteem and social guardedness around his disability. She
stated that her assessment concluded that the veteran was
experiencing symptoms of PTSD as well as underlying major
depressive episode.
On VA examination in November 2005, the examiner noted that
review of the veteran's records did not appear to contain any
relevant mental health history. The veteran reported that he
had a great deal of difficulty living up the physical
expectations of the military, and noted that he was often
humiliated at not being able to perform his duties. He
indicated that he was faced with a great deal of ridicule
because of his physical limitations. He reported that his
depression began while he was in the military and that he
often felt like a failure. He became quite tearful when
talking about his military experiences. On mental status
examination the veteran's underlying mood was dysphoric. The
diagnosis was dysthymic disorder. The examiner noted that
the veteran appeared to have chronic depression which dated
back to his time in the military.
Service connection may be granted for disability resulting
from personal injury suffered or disease contracted in the
line of duty, or for aggravation of a preexisting injury
suffered or disease contracted in the line of duty, in the
active military, naval, or air service. 38 U.S.C.A. §§ 1110,
1131; 38 C.F.R. § 3.303(a).
Service connection may also be granted for any disease
initially diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
Service connection may be granted for disability which is
proximately due to or the result of a service-connected
disease or injury. 38 C.F.R. § 3.310(a). This includes any
increase in disability (aggravation) that is proximately due
to or the result of a service connected disease or injury.
Establishing service connection on a secondary basis requires
evidence sufficient to show (1) that a current disability
exists and (2) that the current disability was either caused
or aggravated by a service-connected disease or injury.
Allen v. Brown, 7 Vet.App. 439 (1995).
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107(b) (West 2002).
Having reviewed the evidence pertaining to this claim, the
Board concludes that service connection is warranted for
depression. In this regard the Board notes that the
veteran's private provider has indicated that his psychiatric
difficulties, which include depression, are tied to his
experiences in service, to include his failure to live up to
physical expectations due to the residuals of poliomyelitis.
Additionally, the November 2005 VA examiner concluded that
the veteran's chronic depression dated back to his time in
the military. As such, the Board finds that service
connection for depression is warranted.
The Board notes that the AOJ rejected the opinion of the VA
examiner because the opinion was unsubstantiated by the
record. However, the examiner clearly established that the
record had been reviewed. Therefore, this was not an opinion
based upon lay history alone. The AOJ also did not comment
on credibility of the veteran's statements regarding the
onset of depression. Although a layman is not competent to
establish a diagnosis, the Board concludes that a layman may
state that he or she is depressed. Therefore, the opinion
may not be rejected out of hand and certainly not without an
assessment of credibility.
The Board has seriously considered Remanding for another
opinion. However, the private and VA evidence is positive.
There is a likelihood that the AOJ may accept that a person
with post-polio syndrome may have experienced depression
during service and there is little likelihood that another
examiner would reach a decision that would be so overwhelming
as to preponderate against the claim. The Board is also
mindful of the veteran's age. Therefore, the decision is
based upon the record.
ORDER
Entitlement to service connection for depression is granted.
____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs